Clark v. Madison County Sheriff's Department

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

JOHN CLARK, )

)

Plaintiff, )

)

VS. ) No. 19-1240-JDT-cgc

)

MADISON COUNTY SHERIFF’S )

DEPARTMENT, )

)

Defendant. )

ORDER DISMISSING CASE,

CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH

AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

On October 7, 2019, Plaintiff John Clark, who at the time of filing was an inmate at

the Madison County Criminal Justice Complex (CJC) in Jackson, Tennessee, filed a pro se

“Motion to file a complaint pursuant to 42 USC 1983.”1 (ECF No. 1.) Clark subsequently

filed a motion to proceed in forma pauperis, which the Court granted. (ECF No. 8.) Clark

sues the Madison County Sheriff’s Department (MCSD).2

1 On October 16, 2019, Clark notified the Court that he had been released from custody

and provided his new address. (ECF No. 4.)

2 Clark also filed an attachment which includes documents he requested in November

2016 from the MCSD related to an August 2004 complaint Clark made against a CJC nurse not

named or mentioned in his present complaint. (ECF No. 5.) Clark also submitted records from

an earlier state-court criminal matter, including a 1998 decision from his direct appeal to the

Tennessee Court of Criminal Appeals. (ECF No. 9.) None of these documents is related to the

civil complaint in this case, and it is not clear why Clark provided them to the Court.

Clark alleges that, while he was at the Penal Farm of the CJC, Sergeant Bullock

made a remark to Officer Kiser that “they need to put a Rainbow Sign over the cell [Clark]

was in.” (ECF No. 1 at PageID 1.) When Clark asked Bullock what he meant, Bullock

stated that he “was talking to Officer Kiser.” (Id.) Clark asked Bullock not to make that

statement again and grieved the incident to Lieutenant Graves, Captains Rudder and

Wilson, and Sheriff John Mehr. (Id.)

Clark also alleges that, while he was in an isolation cell, Officer Reed sexually

harassed him “by calling me his Whore [and] talking about how big my booty was.” (Id.

at PageID 2.) Clark alleges Reed made other sexually suggestive statements to him that

were inappropriate and graphic, watched Clark while he showered, and that on one

occasion the two “almost kissed.” (Id.) He alleges that “[i]t got to the point where i[t] was

scary.” (Id.) Clark alleges Reed gave him special privileges at the Penal Farm, “as if I was

his lover.” (Id. at PageID 2-3.) He wrote to two captains and a lieutenant at the Penal

Farm “before it got any deeper.” (Id. at PageID 3.) Clark alleges Reed continued to make

comments towards him and flirt with him. (Id.)

Clark does not state what relief he seeks in this lawsuit.

The Court is required to screen prisoner complaints and to dismiss any complaint,

or any portion thereof, if the complaintC

(1) is frivolous, malicious, or fails to state a claim upon which relief may

be granted; or

(2) seeks monetary relief from a defendant who is immune from such

relief.

28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).

In assessing whether the complaint in this case states a claim on which relief may

be granted, the standards under Fed. R. Civ. P. 12(b)(6), as stated in Ashcroft v. Iqbal, 556

U.S. 662, 677-79 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57

(2007), are applied. Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). The Court

accepts the complaint’s “well-pleaded” factual allegations as true and then determines

whether the allegations “plausibly suggest an entitlement to relief.’” Williams v. Curtin,

631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681). Conclusory allegations

“are not entitled to the assumption of truth,” and legal conclusions “must be supported by

factual allegations.” Iqbal, 556 U.S. at 679. Although a complaint need only contain “a

short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.

R. Civ. P. 8(a)(2), Rule 8 nevertheless requires factual allegations to make a “‘showing,’

rather than a blanket assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3.

“Pro se complaints are to be held ‘to less stringent standards than formal pleadings

drafted by lawyers,’ and should therefore be liberally construed.” Williams, 631 F.3d at

383 (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants,

however, are not exempt from the requirements of the Federal Rules of Civil Procedure.

Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, 415 F.

App’x 608, 612, 613 (6th Cir. Jan. 31, 2011) (affirming dismissal of pro se complaint for

failure to comply with “unique pleading requirements” and stating “a court cannot ‘create

a claim which [a plaintiff] has not spelled out in his pleading’” (quoting Clark v. Nat’l

Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))).

The Court construes Clark’s complaint as brought pursuant to 42 U.S.C. § 1983,

which provides:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in equity, or other proper

proceeding for redress . . . .

To state a claim under § 1983, a plaintiff must allege two elements: (1) a deprivation of

rights secured by the “Constitution and laws” of the United States (2) committed by a

defendant acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150

(1970).

The Madison County Sheriff’s Department is not an entity subject to suit under

§ 1983. See Jones v. Union Cnty., Tennessee, 296 F.3d 417, 421 (6th Cir. 2002) (citing

Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994)). The Court will construe Clark’s

allegations as alleging claims against Madison County, which may be held liable only if

Clark’s injuries were sustained pursuant to an unconstitutional custom or policy.

See Monell v. Dep’t. of Soc. Serv., 436 U.S. 658, 691-92 (1978). To demonstrate municipal

liability, a plaintiff “must (1) identify the municipal policy or custom, (2) connect the

policy to the municipality, and (3) show that his particular injury was incurred due to

execution of that policy.” Alkire v. Irving, 330 F.3d 802, 815 (6th Cir. 2003) (citing Garner

v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993)). “[T]he touchstone of ‘official

policy’ is designed ‘to distinguish acts of the municipality from acts of employees of the

municipality, and thereby make clear that municipal liability is limited to action for which

the municipality is actually responsible.’” City of St. Louis v. Praprotnik, 485 U.S. 112,

138 (1988) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479-80 (1986) (emphasis in

original)). Because Clark does not allege that a Madison County policy is responsible for

the officers’ treatment of him, he does not state a claim against Madison County.

To the extent Clark attempts to raise an Eighth Amendment claim against Sergeant

Bullock and Officer Reed for sexual harassment, he fails to state a claim. It is well settled

that verbal harassment at the hands of prison officials does not constitute a violation of the

Eighth Amendment. See, e.g., Johnson v. Unknown Dellatifa, 357 F.3d 539, 546 (6th Cir.

2004) (holding that even harassment that constitutes “shameful and utterly unprofessional

behavior” is insufficient to constitute cruel and unusual punishment); Violett v. Reynolds,

76 F. App’x 24, 27 (6th Cir. 2003) (holding that an officer’s “reprehensible” action of

offering of sexual favors to the plaintiff-inmate did “not rise to the level of a constitutional

violation”); Johnson v. Ward, 215 F.3d 1326, at *1 (6th Cir. 2000) (unpublished) (citing

Ivey v. Wilson, 832 F.2d 950, 954-55 (6th Cir. 1987)) (affirming district court’s conclusion

that prisoner’s allegation about corrections officer who “made an offensive sexual remark

to him does not rise to the level of a constitutional violation”).

Clark appears to assert that the comments constituted unlawful discrimination. The

Fourteenth Amendment’s Equal Protection clause protects against discrimination based on

sexual orientation. See Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012)

(citing Stemler v. City of Florence, 126 F.3d 856, 873-74 (6th Cir. 1997) (noting that the

Sixth Circuit has not yet recognized sexual orientation as a suspect classification, so claims

of discrimination based on sexual orientation are governed by rational basis review).

However, Clark does not allege an equal protection claim. “To state an equal protection

claim, a plaintiff must adequately plead that the government treated the plaintiff

‘disparately as compared to similarly situated persons and that such disparate treatment

either burdens a fundamental right, targets a suspect class, or has no rational basis.’” Ctr.

For Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011) (quoting

Club Italia Soccer & Sports Org., Inc. v. Charter Twp. Of Shelby, Mich., 470 F.3d 286,

299 (6th Cir. 2006)), overruled on other grounds by Engquist v. Or. Dep’t of Agric., 553

U.S. 591 (2008).

Clark does not allege that he was treated differently than similarly situated inmates

of a different sexual orientation. He alleges only that two officers made inappropriate or

suggestive comments towards him. These allegations do not amount to a Fourteenth

Amendment equal protection claim.

To the extent Clark seeks to sue the prison officials who did not respond to his

grievances, he does not state a claim. “There is no inherent constitutional right to an

effective prison grievance procedure.” See LaFlame v. Montgomery Cnty. Sheriff’s Dep’t,

3 F. App’x 346, 348 (6th Cir. 2001) (citing Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th

Cir. 1996)). A § 1983 claim therefore cannot be premised on contentions that the grievance

procedure was inadequate. Id.

Clark does not state the relief he seeks in the lawsuit. To the extent he seeks

injunctive or declaratory relief, his request is moot because he is longer incarcerated at the

CJC. See Colvin v. Caruso, 605 F.3d 282, 289 (6th Cir. 2010) (claim for declaratory or

injunctive relief is rendered moot by the plaintiff’s transfer to a different prison facility);

Moore v. Curtis, 68 F. App’x 561, 562 (6th Cir. 2003) (same); Kensu v. Haigh, 87 F.3d

172, 175 (6th Cir. 1996) (same). Nor may he recover damages under the PLRA, which

bars prisoner suits “for mental or emotional injury suffered while in custody without a prior

showing of physical injury or the commission of a sexual act.” 42 U.S.C. § 1997e(e).

Clark does not allege any physical or sexual act. He alleges only that he and Officer Reed

“almost kissed.” That allegation alone is insufficient to overcome the bar under § 1997e(e).

For all these reasons, Clark’s complaint is subject to dismissal for failure to state a

claim on which relief may be granted.

The Sixth Circuit has held that a district court may allow a prisoner to amend his

complaint to avoid a sua sponte dismissal under the PLRA. LaFountain v. Harry, 716 F.3d

944, 951 (6th Cir. 2013); see also Brown v. R.I., 511 F. App’x 4, 5 (1st Cir. 2013)

(per curiam) (“Ordinarily, before dismissal for failure to state a claim is ordered, some form

of notice and an opportunity to cure the deficiencies in the complaint must be afforded.”).

Leave to amend is not required where a deficiency cannot be cured. Gonzalez-Gonzalez v.

United States, 257 F.3d 31, 37 (1st Cir. 2001) (“This does not mean, of course, that every

sua sponte dismissal entered without prior notice to the plaintiff automatically must be

reversed. If it is crystal clear that . . . amending the complaint would be futile, then a

sua sponte dismissal may stand.”); Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001)

(“We agree with the majority view that sua sponte dismissal of a meritless complaint that

cannot be salvaged by amendment comports with due process and does not infringe the

right of access to the courts.”). In this case, the Court concludes that leave to amend is not

warranted.

In conclusion, the Court DISMISSES this case in its entirety for failure to state a

claim on which relief can be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and

1915A(b)(1). Leave to amend is DENIED.

Pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule of Appellate Procedure

24(a)(3), the Court must also consider whether an appeal by Clark in this case would be

taken in good faith. The good faith standard is an objective one. Coppedge v. United States,

369 U.S. 438, 445 (1962). It would be inconsistent for a district court to determine that a

complaint should be dismissed prior to service on the Defendants but has sufficient merit

to support an appeal in forma pauperis. See Williams v. Kullman, 722 F.2d 1048, 1050 n.1

(2d Cir. 1983). The same considerations that lead the Court to dismiss this case for failure

to state a claim also compel the conclusion that an appeal would not be taken in good faith.

Therefore, leave to proceed on appeal in forma pauperis is DENIED.

For analysis under 28 U.S.C. § 1915(g) of future filings, if any, by Clark, this is the

first dismissal of one of his cases as frivolous or for failure to state a claim. This strike

shall take effect when judgment is entered. See Coleman v. Tollefson, 135 S. Ct. 1759,

1763-64 (2015).

The Clerk is directed to prepare a judgment.

IT IS SO ORDERED.

s/ James D. Todd

JAMES D. TODD

UNITED STATES DISTRICT JUDGE